Regulatory classification

[Commentary] Recently, millions of Americans, mainly on the left, rallied behind a cause larger than themselves: maximizing President Donald Trump’s power over the Internet. Wait. What?

Powers invoked for net neutrality could be a Trojan horse — just as the Electronic Frontier Foundation warned about the Republican-controlled Federal Communications Commission’s power grab in 2008. The current FCC Chairman, Ajit Pai, has long criticized the FCC’s abuses of power. He has consistently opposed the politicization of the agency and called for the FCC to constrain its discretion. But Pai won’t be chairman forever, and his self-restraint is highly exceptional. Democrats should have worked out a legislative deal while they held the White House. It’s not too late, but it soon might be. Republicans increasingly see Web companies as political enemies. That will only get worse without legislation. We could spend another decade, or more, fighting about this. The good news? Some Democrats and Web companies are showing signs they might negotiate. The door remains open — for now.

[Berin Szoka is president of TechFreedom, a technology policy think tank.]

[Commentary] The General Conduct standard and the advisory opinion process ended what Mercatus Center scholar Adam Thierer has described as the “permissionless innovation” standard that has governed the Internet ecosystem since at least 1996, when Congress passed a law declaring the policy of the US to leave the Internet “unfettered by Federal or State regulation.” The Federal Communications Commission’s wide-ranging, 400-page order instead opted for precisely the opposite, demanding that Internet service providers and their immediate business partners apply for permission for any improvement to the network—permission that wasn’t permission at all, and which might never actually arrive. These needless and dangerous innovation-killers, in addition to the other legal and economic problems caused by the hastily-crafted 2015 Open Internet order, justify FCC Chairman Ajit Pai’s proposal to reverse course and return ISPs to full participation in the Internet ecosystem, where they operated without violating even a strict definition of “net neutrality” for twenty years.

Neutrality was never seriously at risk, nor is it now. But if it is, legislation proposed by Republicans before the FCC swallowed the bitter public utility bill remains the only viable solution, if only to avoid another decade of see-sawing decisions. Chairman Pai is right to be undoing the damage done as quickly as possible.

[Larry Downes is the Project Director at Georgetown Center for Business and Public Policy.]

Prior to the July 12 protest, news outlets were warning their readers to “prepare to be assaulted” by the extent of the protest, after major players like Google, Facebook, Netflix, and Amazon announced their participation in the Day of Action. But as many of those same news outlets have since pointed out, the aforementioned major players barely did anything to promote the protest where it counted: on their most visible and highly trafficked homepages and within their mobile apps. “If you blinked, you missed yesterday’s net neutrality protest,” Recode declared, while Politico hedged that it “may have flown under some radars.”

Protests in support of net neutrality have occurred almost semiannually since 2010, with major events taking place in 2012 and 2014 to comment on pending regulations. The 2012 net neutrality blackout, which successfully campaigned against the restrictive Stop Online Piracy Act (SOPA), was particularly notable because major websites like Wikipedia, Reddit, Tumblr, and Google went dark or displayed prominent site interruptions for the full day. These stances were dramatic — especially compared with the mild, unintrusive efforts made during the July 12 protest.

If you care about robust broadband, if you care about being able to use the internet without your service provider compromising your privacy, picking winners and losers online, if you want infrastructure built in your communities, then you cannot remain on the sidelines. File comments in our open internet proceeding, let your federal Reps or Sens hear about what you think and what you need. Make your voice heard. I, for one, welcome hearing from you, consider your voices and opinions significant and view what you file as substantial. We are not doing our jobs as regulators, if we aren’t listening to you, we are not representing your interests if we fail to understand or consider what you are facing or what concerns you.

I am here tonight in Marietta (OH) because I am using my two ears and will now limit what else I say with my one mouth. My unwavering promise to you this evening, is that I will take what you say back to Washington (DC), and ensure that your stories are told and that they are part of our public policy debate.

The Trump Administration has signaled that it stands behind efforts by the Federal Communications Commission and its Chairman, Ajit Pai, to roll back the agency's network neutrality regulations for Internet providers. Speaking to reporters (audio only) on July 18, administration officials said that while rules can be helpful, the Obama administration “went about this the wrong way.” “We support the FCC chair's efforts to review and consider rolling back these rules,” said deputy White House press secretary Sarah Huckabee Sanders, “and believe that the best way to get fair rules for everyone is for Congress to take action and create regulatory and economic certainty.”

The administration's move recalls similar efforts by the White House, during the Obama Administration, to make its opinion known on the issue of net neutrality. “The process raises serious questions about the president's inappropriate influence over what is supposed to be an independent agency that derives its authority from Congress and not the White House,” Sen Ron Johnson (R-WI) said at the time in a letter to the FCC criticizing the matter. Still, some analysts say, any attempt by a White House to address pending FCC matters should be out of bounds. It was wrong when President Obama asserted himself, and it would be wrong for Trump to do so now, said Scott Wallsten, an economist and president of the Technology Policy Institute. “If the agency is independent, then the executive branch should stay out, plain and simple,” he said.

The Federal Communications Commission has denied a request to extend the deadline for filing public comments on its plan to overturn net neutrality rules, and the FCC is refusing to release the text of more than 40,000 net neutrality complaints that it has received since June 2015.

The National Hispanic Media Coalition (NHMC) filed a Freedom of Information Act (FoIA) request in May for tens of thousands of net neutrality complaints that Internet users filed against their ISPs. The NHMC argues that the details of these complaints are crucial for analyzing FCC Chairman Ajit Pai's proposal to overturn net neutrality rules. The coalition also asked the FCC to extend the initial comment deadline until 60 days after the commission fully complies with the FoIA request. A deadline extension would have given people more time to file public comments on the plan to eliminate net neutrality rules. Instead, the FCC denied the motion for an extension and said that it will only provide the text for a fraction of the complaints, because providing them all would be too burdensome. Chairman Pai has previously claimed that his proposed repeal of net neutrality rules is using a "far more transparent" process than the one used to implement net neutrality rules in 2015. Chairman Pai has also claimed that net neutrality rules were a response to "hypothetical harms and hysterical prophecies of doom" and that there was no real problem to solve.

[Commentary] As Federal Communications Commission Chairman Ajit Pai moves his agency toward rolling back Obama-era network neutrality rules, more voices are calling for a lasting solution to the debate: a new law. FCC rulings are subject to court challenges and changing political regimes, after all. But Congress is so mired in the Trump agenda, and so distracted by the administration’s daily melodrama, that passing new telecom law any time soon seems practically impossible.

The Internet Association, a trade group representing internet companies, lashed out at a pro-net neutrality group July 18 for initially saying that they planned to go after Rep Steve Scalise (R-LA) with billboard attack ads. Fight for the Future announced that it planned to launch a billboard campaign targeting lawmakers who have spoken in favor of the Federal Communications Commission’s effort to repeal its net neutrality rules. Evan Greer, the group’s spokeswoman, sent a list of lawmakers to The Hill that would be targeted by the billboard. Rep Scalise, who is currently recovering from a gunshot wound inflicted during an attack on lawmakers in June, was included on that list. Greer has since clarified that the Louisiana Republican’s name was mistakenly added and that the group has no plans to launch ads against him.

But the Internet Association, which has largely been on the same side of the net neutrality fight, took issue with Fight for the Future’s announcement. “Fight for the Future’s latest efforts on net neutrality are unacceptable,” said Michael Beckerman, the trade group’s president. “Accusing a Member of Congress of ‘betrayal’ while he’s recovering in the hospital is despicable. This type of advocacy is not what Internet Association and our member companies stand for.” “The IA statement is based on an incorrect report,” Greer countered. “Rep Scalise’s name was included in private emails to two reporters, due to a copy paste error, and corrected once brought to our attention. We would obviously not run billboards against somebody who is in the hospital.”

The Open Technology Institute asked the Federal Communications Commission to rescind a dangerous proposal to repeal the agency’s 2015 network neutrality rules. By filing comments in the agency’s public docket, we joined millions of Americans who have asked Chairman Ajit Pai to support internet freedom and keep the current rules intact. In our comments, OTI explains how Chairman Pai’s proposal would damage the open internet and harm the American people. We detail the long history of ISP interference with their customers’ access to a free and open internet. We explain that Title II is the only legal pathway for effective FCC rules, and that the Commission’s authority over mobile broadband and interconnection is legally sound. We argue that Title II has helped the FCC protect consumer privacy and close the digital divide. And we urge Chairman Pai to abandon his poorly conceived and dangerous plan.

When the Federal Communications Commission classified broadband Internet service providers as Title II common carriers in the 2015 Open Internet Order (2015 OIO), it argued that emerging industries had thrived under “light touch” variations of Title II regulations and that broadband would be no different. This argument does not hold up to scrutiny, write Thomas Hazlett, H.H. Macaulay Endowed Chair in Economics at Clemson University and former Chief Economist of the FCC, and Joshua Wright, Executive Director, Global Antitrust Institute at George Mason University and former FTC Commissioner, in their article “The Effect of Regulation on Broadband Markets: Evaluating the Empirical Evidence in the FCC’s 2015 ‘Open Internet’ Order.”

This blog post is the fifth in a series featuring the contents of a recent special issue of the Review of Industrial Organization, organized by the Technology Policy Institute and the University of Pennsylvania’s Center for Technology, Innovation, and Competition.